Re Ozoude Kenneth Ginikachukwu

HCAL 310/2018

[2020] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 310 OF 2018  

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D E C I S I O N

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1.On 13 May 2020 I refused to extend time for the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding that there was no good reason for his delay with his intended application, that none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 16 June 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 27 May 2020, and hence he was late by 20 days with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of almost 3 weeks cannot be said to be insignificant, for which he in his supporting affidavit merely repeated his explanation for his earlier delay with his application for judicial review of the Board’s decision which is not at all relevant to his present delay with his intended appeal against the court’s decision, and at the hearing of his summons he claimed to have never received the decision in the mail, and that it was only after he was informed by his immigration that he only managed to obtain a copy from the court when by then he was already out of time with his intended appeal.

5.The court record however shows that the decision was sent on the same day to the Applicant at his last reported address and that it has never been returned through undelivered mail. As such and as the Applicant was unable to provide any further details or documentary evidence in support of his claim, I am not satisfied that he has provided any good or valid reason for his delay.

6.More importantly, nor did he in his summons or at the hearing provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, and in his supporting affidavit he merely repeated his claim that his life would be in danger if refouled to his home country, while his complaint that he was not given any oral hearing for his leave application before me when he had never made such a request cannot be accepted as a reasonably arguable basis for his intended appeal. As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

7.In the premises, it would be futile to extend time for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.

The applicant appeared in person